OTTAWA — The federal government says it is under a legal obligation to put the rights of medicinal marijuana users ahead of the rights of property owners.

Health Canada was responding to criticism from a Coquitlam woman who said she incurred $135,000 in repair costs, caused by mould and damage to her rental property’s electrical system, due to a grow-op in the basement she discovered last year.

She said she was the victim of a $20,000-a-month commercial grow-up run by someone operating with two Health Canada licenses, giving them permission to grow a limited amount of pot for personal use. She had no knowledge of the grow op nor had she given her consent for it to be operated on her property.

And she says new government regulations, brought in last month in response to a Federal Court of Canada decision, will lead to more victims whose rental properties might be severely damaged.

“I don’t want this to happen to other property owners,” said the woman, who spoke on condition of anonymity.

But Health Canada, which took several days to reply to questions about her plight, issued a statement late Thursday indicating that the government’s hands are tied.

A number of court rulings, including the Federal Court decision in February involving four B.C. plaintiffs seeking the right to grow their own weed, have forced the government’s hand.

Federal Health Minister Jane Philpott’s department says it is under a legal obligation to put the rights of medicinal marijuana users ahead of the rights of property owners.Nathan Denette /
THE CANADIAN PRESS

That decision struck down a 2013 attempt by the former Conservative government to require medicinal pot users to buy from government-sanctioned companies rather than grow their own.

“In designing the new regulations, Health Canada has sought to ensure that Canadians who require cannabis for medical purposes have reasonable access, which was a key aspect of the most recent Federal Court decision that found the previous regulations unconstitutional,” Health Canada said in a statement.

“The new regulations do not require individuals to notify or seek the consent of their landlords, as such requirements would likely infringe on their right to reasonable access to cannabis for medical purposes.”

The statement said a consent requirement would force tenants “to choose between where they live and being able to access to cannabis for their medical need.”

A B.C. Conservative MP, a prominent West Coast criminologist and an outspoken advocate for marijuana legalization all said Friday that Health Canada is essentially acknowledging that the vast majority of landlords would refuse consent if a tenant told them they planned to grow pot, given the health and safety risks.

Simon Fraser University professor Neil Boyd said the Federal Court case demonstrated that there are some sick people who legitimately need “extraordinary” amounts of marijuana, making the purchase through a government producer overly expensive.

But he said the Trudeau government, which is studying ways to legalize and regulate the cannabis industry, needs to find a solution that balances their rights with those of unsuspecting property owners.

The latest regulations in August offer “a poor remedy for the problem,” said Boyd, chairman of the Vancouver-based International Centre for Criminal Law Reform and Criminal Justice Policy.

“If there is a medical legitimacy to the consumption, these individuals need to be covered in some other way for their consumption,” he wrote in an email exchange.

“Allowing them to grow large quantities in rental homes is ultimately not a route that we should be pursuing. The cited risks of mould, fire and the like (although they can be taken care of) should not be imposed on owners of residential properties without their knowledge.”

Former Surrey mayor Dianne Watts, the Conservative MP for South Surrey-White Rock.House of Commons

Tory MP Dianne Watts, who dealt with the grow-up issue when she was Surrey’s three-term mayor, agreed that Ottawa is prioritizing the rights of pot patients.

“Depending on how much they grow there are significant issues, like ventilation and mould,” she said.

“We have seen first hand that some people have abused the system whereby they grow much more than the license allows. This has also caused issues not only in rental properties but also houses for resale.”

An Abbotsford lawyer, who was lead counsel in the Federal Court case on behalf of the medicinal pot-smoking plaintiffs, acknowledged earlier this week he didn’t know landlord consent wasn’t required.

John Conroy shares Boyd’s hope that the Trudeau government, which said the August regulations were an interim step en route to cannabis legalization, can resolve the dilemma.

“It seems to me there are valid concerns on the part of the owners and tenant-patients in the current market that will hopefully ultimately disappear in a legal market,” Conroy said.

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